Detention - Unlawful detention - False imprisonment - Damages
BA and others v Secretary of State for the Home Department (Bail for Immigration Detainees intervening): Court of Appeal, Civil Division (Sir Anthony May P, Lady Justice Black and Lord Justice Davis): 11 July 2012
In October 2006, the first claimant, BA, and her two children both aged under four (the second and third claimants) entered the UK unlawfully. All three were citizens of the Cameroon. They were arrested later that month. BA claimed asylum for herself and her children, alleging that she had been subjected to political persecution in the Cameroon and that, if returned, she would be subjected to similar persecution. She alleged that internal relocation on return would be impossible. The defendant secretary of state refused her claim.
Her appeal to the Asylum and Immigration Tribunal was dismissed. Her subsequent application for permission to appeal to the Court of Appeal was also dismissed. In January 2008, the secretary of state issued removal directions for BA and her children. Those directions were withdrawn. The secretary of state then discovered that BA was in the late stages of pregnancy. It was decided that no removal would be effected until after the child was born. In March, the third child, BD (the fourth claimant) was born. In May, further removal directions were set along with directions to detain the claimants until their removal. The claimants were taken into custody and held at a detention centre.
Shortly after being taken into immigration detention, BA, but not the children, applied for permission to bring judicial review proceedings to challenge the decision to remove her. BA had instructed a firm of solicitors who held a legal aid franchise in respect of immigration and asylum law. In June, a fresh asylum claim was made, but subsequently refused. The removal directions were affirmed. The application for permission to bring judicial review proceedings was refused. Further representations were made on behalf of the claimants, which were rejected by the secretary of state.
In July, fresh removal directions were set. BA's solicitors wrote to the secretary of state with further submissions, requesting that they be treated as a fresh claim. A letter from a consultant paediatrician was sent to the secretary of state regarding BD’s health and asserting that there had been no need to detain the claimants as they would not be removed within the next two months due to legitimate health needs. A second application for permission to bring judicial review proceedings was made on behalf of '[BA] plus three' seeking to challenge the July removal directions and challenging the lawfulness of the detention.
BA's solicitors had not been instructed to act on behalf of the children. On 22 July, the claimants were released following the setting aside of the July removal directions. In February 2009, the secretary of state submitted summary grounds of defence which asserted that the detention had been in accordance with relevant policies and procedures, that the claimants were released once removal had not been effected on the planned date, that the claimants’ detention had been reviewed weekly and that the claimants’ medical conditions had been fully considered.
In March 2009, the claimants’ sent a letter before action to the secretary of state claiming that they had been falsely imprisoned and there had been breaches of their rights under the European Convention on Human Rights. That letter was sent by a second firm of solicitors who had been instructed to act in relation to the claim for damages as it held a legal aid franchise for public law. The application to bring judicial review proceedings against the removal directions was dismissed and the claim was certified as being totally without merit. In May, proceedings were issued seeking damages for unlawful detention. The claim was served in November.
The secretary of state served a defence which contended that the claim was an abuse of process. The claim was struck out and the claimants appealed. The judge allowed the appeal on the basis that it was not abusive to bring a private law claim for damages for detention. The secretary of state appealed. The issue for determination was whether, if a person who was in detention pending removal, raised a claim in the Administrative Court challenging the removal directions and claiming that the detention was unlawful was refused permission to bring the claim, that person can begin an action afresh for damages for the unlawful detention. The appeal would be dismissed.
In the circumstances of the instant case, applying a broad merits based approach, there had not been an abuse of process. First, the position on the franchising of legal aid appeared to have been a significant factor that had had an important influence on the course that the litigation had taken. It could not be just to penalise a litigant when the lawyers could not, by reason of funding arrangements made by the state through the Legal Service Commission (LSC), give a full range of the advice and litigation services necessary for the fair and proper bringing of appropriate remedies.
That factor counted very strongly against the proceedings having been an abuse of process. Secondly, the position of the children had not been properly safeguarded where the first solicitors had not been instructed on behalf of the children in the challenge to the removal directions and where their case appeared to have been based on the consultant paediatrician's letter. Thirdly, the nature of the claim was an important factor. The second application for judicial review had been based principally on health grounds and only briefly contained a ground relating to the unlawfulness of the detention which rested substantially on the paediatrician's letter. Fourthly, the claimants had not behaved in any way which was culpable.
Fifthly, judgment on the second application for permission to issue judicial review proceedings had not been delivered before the letter before action in the unlawful detention proceedings had been sent. Finally, in all the circumstances, there had been no unjust burden placed on the secretary of state as there had been good reasons for the second set of proceedings (see - of the judgment). Clark v University of Lincolnshire and Humberside  3 All ER 752 considered; Securum Finance Ltd v Ashton  All ER (D) 843 considered; Johnson v Gore Wood & Co (a firm)  1 All ER 481 considered; Carter Commercial Developments Ltd v Bedford Borough Council  All ER (D) 388 (Jul) considered; D v Home Office (Bail for Immigration Detainees intervening)  1 All ER 183 considered.
Per curiam: 'Under the legal aid arrangements, it was generally the practice that only firms with public law contracts could bring a publicly funded claim for damages for immigration detention. Those firms without that franchise, but with a franchise in relation to immigration and asylum law, could generally only bring proceedings to challenge the removal directions. [...] These arrangements made by the LSC, as in other areas, have an important effect on access to justice and the fair and proper administration of justice. It is deeply regrettable that this consequence is not recognised by those who devise the arrangements at the LSC. No doubt they have an eye on their own considerations for the operation of an efficient legal system without thinking properly about considerations of justice.
'Although it is plainly necessary for the LSC and the Home Office to examine the rationality of the arrangements made by the LSC for franchising its immigration claims, while they subsist the arrangements are an important factor in assessing whether the bringing of separate proceedings for damages for detention is an abuse of process. It cannot be just to penalise a litigant when the lawyers cannot by reason of funding arrangements made by the state through the LSC give a full range of the advice and litigation services necessary for the fair and proper bringing of appropriate remedies. [...] However, assuming that the position on legal assistance does not remain as it is, for the future a claimant in detention who challenges the legality of removal directions will be well advised to raise in the judicial review proceedings any claim in relation to the legality of the detention or run the real risk that, where there is no change of circumstances, a subsequent claim for damages for detention will fail as an abuse of process' (per Sir John Thomas P at , ,  of the judgment).
Decision of Judge Anthony Thornton  All ER (D) 139 (Jun) affirmed; Hugh Southey QC (instructed by Deighton Pierce Glynn Ltd) for the claimants; James Eadie QC and Robert Kellar (instructed by the Treasury Solicitor) for the secretary of state; Helen Mountfield QC and Tom Hickman (instructed by Allen & Overy LLP) for the intervening party.